State v. Rinck, 55811
| Decision Date | 14 June 1971 |
| Docket Number | No. 1,No. 55811,55811,1 |
| Citation | 467 S.W.2d 897 |
| Parties | STATE of Missouri, Respondent, v. Eugene James RINCK, Appellant |
| Court | Missouri Supreme Court |
John C. Danforth, Atty. Gen., John W. Cowden, Asst. Atty. Gen., Jefferson City, for respondent.
Jay White, Rolla, for appellant.
HIGGINS, Commissioner.
By information it was charged that Eugene James Rinck did feloniously 'in the presence of one Kenneth Thorpe and others,' exhibit and flourish a He was convicted by a jury of the offense charged, punishment was assessed at fifty days' imprisonment in the county jail, and sentence and judgment were rendered accordingly. § 546.610, V.A.M.S.; State v. Ready, Mo., 251 S.W.2d 680.
Appellant contends, points V, VI, and VII, that he should have been acquitted at the close of the state's case, asserting insufficiency of evidence to show that Officer Thorpe had authority to enter defendant's home and arrest him without a warrant, and to prove intent, and that the evidence proved defendant's right to resort to force to expel the officer from his household.
Kenneth Charles Thorpe was a police officer for the City of Rolla, Missouri. On September 21, 1969, he received a call over the police radio and was dispatched to 112 South Spillman, Rolla, Phelps County, Missouri, because 'someone had a gun and was threatening to kill someone.' He recognized the address as the home of Mr. and Mrs. Eugene Rinck. When he arrived there, Mrs. Rinck met him at the door and said her husband 'was inside drinking * * * And he had a gun and was threatening her. I advised her to call the city police judge and get a warrant for his arrest. She said, 'Don't leave. Come on in. " When he went inside the house he observed Mr. Rinck seated with a double-barreled shotgun across his lap. He asked if the gun was loaded and, upon being so advised, directed defendant to Defendant 'squeezed his hand' on the trigger but the gun proved to be 'on safety.' 'I was in uniform, on duty.' Officer Thorpe used mace in an effort to subdue defendant but it had little effect and he pulled his pistol to obtain the shotgun from defendant. The shotgun was a hammerless model, loaded with two shells. Officer Thorpe had no warrant and defendant stated it was his house.
Roger Lambeth, also of the Rolla police department, arrived at the Rinck home after Officer Thorpe and saw Mrs. Rinck and a little girl. Mrs. Rinck asked him to assist Officer Thorpe. He went inside the house and saw Officer Thorpe 'in the process of putting the handcuffs on Mr. Rinck.'
From the foregoing evidence, a jury could properly find that Officer Thorpe had authority to enter defendant's home without a warrant from the invitation and request to enter given by defendant's wife. The arrest without a warrant was justified by the manner in which the shotgun was brought to bear on Officer Thorpe, and the same evidence supported the necessary criminal intent. Finally, the evidence shows that defendant neither asked why Officer Thorpe entered the home nor requested him to leave. He simply advanced on the officer in a threatening manner. There was no evidence to support an inference that he was defending his home, and the officer was lawfully present in the house by invitation of defendant's wife. Such evidence is inconsistent with the asserted defense of habitation. City of Independence v. Stewart, Mo.App., 397 S.W.2d 765, 768--769; State v. Gibson, Mo., 300 S.W. 1106; State v. Heffernan, 124 Mo.App. 329, 101 S.W. 618; State v. Ready, supra.
Prior to impaneling the jury, defendant moved to exclude state's witnesses from the courtroom during voir dire and to exclude them during trial except when testifying to prevent them from conforming their testimony to that of other witnesses and the state's opening statement. The motion was overruled, and appellant charges that the denial of his motion was an abuse of the court's discretion.
The exclusion of witnesses from the courtroom during trial rests in the discretion of the trial court. State v. Lord,...
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